CHAPTER THE TWENTY-NINTH.

OF TITLE BY SUCCESSION, MARRIAGE, AND JUDGMENT. In the present chapter we shall take into consideration three other species of title to goods and chattels.

V. The fifth method therefore of gaining a property in chattels, either personal or real, is by succession: which is, in strictness of law, only applicable to corporations aggregate of many, as dean and chapter, mayor and commonalty, master and fellows, and the like; in which one set of men may, by succeeding another set, acquire a property in all the goods, movables, and other chattels of the corporation. The true reason whereof is, because in judgment of law a corporation never dies; and therefore the predecessors, who lived a century ago, and their successors now in being, are one and the same body corporate. Which identity is a property so inherent in the nature of a body politic, that, even when it is meant to give anything to be taken in succession by such a body, that succession need not be expressed: but the law will of itself imply it. So that a gift to such a corporation, either of lands or of chattels, without naming their successors, vests an absolute property in them so long as the corporation subsists. And thus a lease for years, an obligation, [431] a jewel, a flock of sheep, or other chattel interest, will vest in the successors, by succession, as well as in the identical members, to whom it was originally given.

But with regard to sole corporations, a considerable distinction must be made. For if such sole corporation be the representative of a number of persons; as the master of an hospital, who is a corporation for the benefit of the poor brethren; an abbot, or prior, by the a 4 Rep. 65.

b Bro. Abr. t. estates. 90. Cro. Eliz. 464.

old law before the reformation, who represented the whole convent; or the dean of some antient cathedral, who stands in the place of, and represents in his corporate capacity, the chapter; such sole corporations as these have in this respect the same powers, as corporations aggregate have, to take personal property or chattels in succession. And therefore a bond of such a master, abbott, or dean, and his successors, is good in law; and the successor shall have the advantage of it, for the benefit of the aggregate society, of which he is in law the representative.* Whereas in the case of sole corporations, which represent no others but themselves, as bishops, parsons, and the like, no chattel interest can regularly go in succession: and therefore, if a lease for years be made to the bishop of Oxford and his successors, in such case his executors or administrators, and not his successors, shall have it. For the word successors, when applied to a person in his political capacity, is equivalent to the word heirs in his natural; and as such a lease for years, if made to John and his heirs, would not vest in his heirs, but his executors; so if it be made to John bishop of Oxford and his successors, who are the heirs of his body politic, it shall still vest in his executors and not in such his successors. The reason of this is obvious: for, besides that the law looks upon goods and chattels as of too low and perishable a nature to be limited either to heirs, or such successors as are equivalent to heirs; it would also follow, that if any such chattel interest (granted to a sole corporation and his successors) were allowed to descend to such successor, the property thereof must be in abeyance from the [432] death of the present owner until the successor be appointed; and this is contrary to the nature of a chattel interest, which can never be in abeyance or without an owner; ⚫e c Dyer. 48. Cro. Eliz. 464. 8 Previously, "politic." *Cited, 22 Wend. 103; Tapp. 281.

d Co. Litt. 46.

e Brownl. 132,

but a man's right therein, when once suspended, is gone forever. This is not the case in corporations aggregate, where the right is never in suspence; nor in the other sole corporations before-mentioned, who are rather to be considered as heads of an aggregate body, than subsisting merely in their own right: the chattel interest therefore, in such a case, is really and substantially vested in the hospital, convent, chapter, or other aggregate body; though the head is the visible person in whose name every act is carried on, and in whom every interest is therefore said (in point of form) to vest. But the general rule, with regard to corporations merely sole, is this, that no chattel can go or be acquired by right of succession.

Yet to this rule there are two exceptions. One in the case of the king, in whom a chattel may vest by a grant of it formerly made to a preceding king and his successors. The other exception is, where, by a particular custom, some particular corporations sole have acquired a power of taking particular chattel interests in succession. And this custom, being against the general tenor of the common law, must be strictly interpreted, and not extended to any other chattel interests than such immemorial usage will strictly warrant. Thus the chamberlain of London, who is a corporation sole, may by the custom of London take bonds and recognizances to himself and his successor, for the benefit of the orphan's fund: but it will not follow from thence, that he has a capacity to take a lease for years to himself and his successors for the same purpose; for the custom extends not to that: nor that he may take a bond to himself and his successors, for any other purpose than the benefit of the orphan's fund;

f Co. Litt. 46.

g Ibid. 90.

h 4 Rep. 65. Cro. Eliz. 682.

9 Ninth edition reads, "to or be acquired by them in."

for that also is not warranted by the custom. Wherefore, upon the whole, we may close this head with laying down this general rule; that such right of succession to chattels is universally [433] inherent by the common law in all aggregate corporations, in the king, and in such single corporations as represent a number of persons; and may, by special custom, belong to certain other sole corporations for some particular pur. poses: although, generally, in sole corporations no such right can exist.

VI. * A sixth method of acquiring property in goods and chattels is by marriage; whereby those chattels, which belonged formerly to the wife, are by act of law vested in the husband, with the same degree of property and with the same powers, as the wife, when sole, had over them.

This depends entirely on the notion of an unity of person between the husband and wife; it being held that they are one person in law, so that the very being and existence of the woman is suspended during the coverture, or entirely merged or incorporated in that of the husband. And hence it follows, that whatever personal property belonged to the wife, before marriage, is by marriage absolutely vested in the husband. [See note 80, page 666.] In a real estate, he only gains a title to the rents and profits during coverture: for that, depending upon feodal principles, remains entire to the wife after the death of her husband, or to her heirs, if she dies before him; unless by the birth of a child, he becomes tenant for life by the curtesy. But, in chattel interests, the sole and absolute property vests in the husband, to be disposed of at his pleasure, if he chooses to take possession of them: for unless he reduces them to possession, by exercising some act of ownership upon

1 See book I. c. 15.

† Cited, 1 Me. 7; 10 Mass. 263; 19 Wend. 342.

+ Cited, 83 Pa St. 82; 27 Gratt. 603. Ref. 2 Cold. 642.

them, no property vests in him, but they shall remain to the wife, or to her representatives, after the coverture is determined.*

There is therefore a very considerable difference in the acquisition of this species of property by the husband, according to the subject-matter; viz. whether it be a chattel real, (434) or a chattel personal; and, of chattels personal, whether it be in possession, or in action only. A chattel real vests in the husband, not absolutely, but sub modo. As in case of a lease for years, the husband shall receive all the rents and profits of it, and may, if he pleases, sell, surrender, or dispose of it during the coverture: if he be outlawed or attainted, it shall be forfeited to the king;1 it is liable to execution for his debts: m and, if he survives his wife, it is to all intents and purposes his own." Yet, if he has made no disposition thereof in his lifetime, and dies before his wife, he cannot dispose of it by will: for, the husband having made no alteration in the property during his life, it never was transferred from the wife; but after his death she shall remain in her antient possession, and it shall not go to his executors. So it is also of chattels personal (or choses) in action; as debts upon bond, contracts, and the like: these the husband may have if he pleases; that is, if he reduces them into possession by receiving or recovering them at law. And, upon such receipt or recovery, they are absolutely and entirely his own; and shall go to his executors or administrators, or as he shall bequeath them by will, and shall not revest in the wife. But, if he dies before he has recovered or reduced them into possession, so that

Quoted. 2 Call, 463, 476; partly, 4 Rawle, 474. Cited, 14 Ga. 689; 17 Ga. 270: 9 Port. 643; 3 Ga, 547; 72 Ga. 54; 49 Ill. 51; 43 Me. 189; 29 Mass. 175; Conf. 97, 101 (Tayl, & Conf. 228, 233); 28 N. J. L. 222; 14 N. J. L. 269; 3 Gratt. 473.

- Quoted, 13 Gratt. 190. C'ited, Conf. 466, 468; Tarl. & Conf, 522, 524.